Raul Herrera v. James D Hartley

Filing 16

ORDER DENYING Motion for Appointment of Counsel 15 ; ORDER DENYING Petitioner's Motion for Evidentiary Hearing 14 , signed by Magistrate Judge Jennifer L. Thurston on 9/20/12. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAUL HERRERA,

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Petitioner,

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JAMES D. HARTLEY,

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ORDER DENYING PETITIONER'S MOTION
FOR EVIDENTIARY HEARING (Doc. 14)

Respondent.
____________________________________/

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL (Doc. 15)

vs.

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1:12-cv-01357-JLT HC

Petitioner has requested the appointment of counsel and an evidentiary hearing. (Docs. 14
& 15).
Regarding Petitioner's request for appointment of counsel, there currently exists no absolute

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right to appointment of counsel in habeas proceedings. See e.g., Anderson v. Heinze, 258 F.2d 479,

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481 (9th Cir. 1958); Mitchell v. Wyrick, 727 F.2d 773, 774 (8th Cir. 1984). However, Title 18

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U.S.C. § 3006A(a)(2)(B) authorizes the appointment of counsel at any stage of the case "if the

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interests of justice so require." See Rule 8(c), Rules Governing Section 2254 Cases. In the present

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case, the Court does not find that the interests of justice require the appointment of counsel at the

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present time. Accordingly, Petitioner's motion for appointment of counsel is denied without

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prejudice. If the Court determines, in the interests of justice, that appointment of counsel is

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required at some later date, the Court will make the appointment on its own motion.

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Regarding Petitioner's motion for an evidentiary hearing, the Court notes that Respondent

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was ordered to file a response on August 21, 2012; however, as of yet, Respondent has not filed a

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response to the petition. Until Respondent files a response, it is not clear whether there are any legal

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issues, much less factual issues, that would require action by this Court in order to decide the merits

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of the instant petition. Accordingly, Petitioner's motion for an evidentiary hearing is denied as

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entirely premature. When and if the Court decides that disputed issues of material fact require

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such an evidentiary hearing, the Court will order the hearing on its own motion.

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ORDER

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Accordingly, the Court HEREBY ORDERS as follows:

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Petitioner's motion for appointment of counsel (Doc. 15), is DENIED.

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Petitioner's motion for an evidentiary hearing (Doc. 14), is DENIED.

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IT IS SO ORDERED.

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Dated: September 20, 2012
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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